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Letter to AG Sessions on Illegal Hiring Practices

April 11, 2017

The Honorable Jeff Sessions
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

 Dear Attorney General Sessions:

We write to you about ensuring that hiring and other personnel decisions in the Department of Justice’s Civil Rights Division are based on merit, rather than improper considerations such as actual or perceived political affiliation, as required by law.  On March 28, you received an open letter from 25 signatories, suggesting certain “internal reforms” of the Civil Rights Division.  Although we disagree with many aspects of that letter, we write now to address a specific concern with the recommendation that “[t]he Assistant Attorney Generals in each component Division must preserve or reacquire hiring authority and not leave the decisions in the hands of career bureaucrats who are reliably opposed to President Trump’s agenda.”[1]

This recommendation appears to call for a return to the improper and illegal hiring practices undertaken at the Department of Justice in the mid-2000s, including in the Civil Rights Division, where actual or perceived political affiliation was used to make hiring and other personnel decisions.  We remind you that making hiring decisions or taking – or failing to take – other personnel actions (such as the assignment of cases) based on actual or perceived political affiliation is a violation of the merits system protections contained in the Civil Service Reform Act (CSRA) and other federal law.[2]  For example, the CSRA provides that “[a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation,”[3] and that “[e]mployees should be . . . protected against arbitrary action, personal favoritism, or coercion for partisan political purposes.”[4]  The CSRA also prohibits discrimination based on political affiliation.[5]  The Justice Department’s own regulations similarly prohibit such discrimination.[6]  These civil service laws were enacted to strengthen and preserve the accountability of our democratic government by replacing a system of political patronage with one where government officials were selected based on merit to serve all Americans.

Recent history illustrates the importance of guarding against illegal and politically motivated personnel decisions by communicating from the top of the Justice Department that this type of behavior will not be tolerated.  A 2008 report issued by the Justice Department’s Office of the Inspector General and Office of Professional Responsibility concluded that, between 2003 and 2006, a high ranking political appointee in the Civil Rights Division – who led the Division as Acting Assistant Attorney General for some portion of the relevant time period – “considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division,” and thereby “violated federal law . . . and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct.”[7]  This individual was referred to the U.S. Attorney’s Office for the District of Columbia for possible criminal prosecution, although the U.S. Attorney’s Office ultimately declined to prosecute.[8]  The report also concluded that other Civil Rights Division managers failed to exercise proper oversight to ensure appropriate hiring practices.[9]

We agree with the authors of the March 28 letter on at least one count – the Civil Rights Division is the “crown jewel” of the Justice Department.  It has the awesome responsibility of enforcing our nation’s civil rights laws, and ensuring equal treatment and equal justice under the law for all Americans.  For that reason, the Division’s career staff must not be politicized by the incoming Justice Department political appointees, as suggested by the March 28th letter, and must be free to pursue the Division’s mission without inappropriate political interference.  If personnel decisions are made based on political affiliation or for political purposes, it would undermine the Division’s ability to carry out its important mission and the nation’s confidence in the even-handed application of the laws.

We urge you to affirm your commitment to existing laws and equal employment opportunity (EEO) and hiring policies – including specific direction and training of incoming political appointees on the Department’s EEO policies and civil service protections – that ensure that personnel decisions in the Civil Rights Division, and throughout the Department, are made based on merit, without regard to actual or perceived political affiliation, and are consistent with federal law.[10]  Where necessary or appropriate, we ask that you reissue such policies.

Thank you for your attention to this important matter.

 

Sincerely,

 

Ambassador (ret.) Norman L. Eisen
American Civil Liberties Union
American Constitution Society for Law & Policy
American Oversight
Campaign Legal Center
Center for Media and Democracy
CenterLink: The Community of LGBT Centers
Citizens for Responsibility and Ethics in Washington (CREW)
Common Cause
Family Equality Council
Human Rights Campaign
Institute for Science and Human Values
Lambda Legal
The Lawyers’ Committee for Civil Rights Under Law
League of United Latin American Citizens
National Center for Lesbian Rights
National Council of Jewish Women
People For the American Way
Project on Government Oversight
Public Citizen
The Revolving Door Project
Sunlight Foundation
United to Protect Democracy
Voting Rights Institute

 

 

cc:

Senator Chuck Grassley
Chairman
U.S. Senate Committee on the Judiciary

Senator Dianne Feinstein
Ranking Member
U.S. Senate Committee on the Judiciary

Representative Bob Goodlatte
Chairman
House of Representative Committee on the Judiciary

Representative John Conyers
Ranking Member
House of Representative Committee on the Judiciary

Tom Wheeler
Acting Assistant Attorney General
U.S. Department of Justice, Civil Rights Division

Lee J. Lofthus
Assistant Attorney General for Administration
U.S. Department of Justice, Justice Management Division

Michael E. Horowitz
Inspector General
U.S. Department of Justice, Office of the Inspector General

Robin C. Ashton
Counsel
U.S. Department of Justice, Office of Professional Responsibility

[1] https://www.scribd.com/document/343306400/Letter-to-AG-Sessions-on-Civil-Rights-Division

[2] See 5 U.S.C. §§ 2301-2302; 28 C.F.R. § 42.1(a).

[3] 5 U.S.C. § 2301(b)(2).

[4] Id. § 2301(b)(8).

[5] See id. § 2302(b)(1)(E).

[6] See 28 C.F.R. § 42.1(a).

[7] U.S. Dep’t of Justice, Office of the Inspector General & U.S. Dep’t of Justice, Office of Professional Responsibility, An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division at 64 (July 2, 2008), https://oig.justice.gov/special/s0901/final.pdf.

[8] See id. at 1, 63.

[9] See id. at 64.

[10] See, e.g., Civil Rights Div., Equal Employment Opportunity, Anti-Harassment & Whistleblower Protection Policy, https://www.justice.gov/sites/default/files/crt/legacy/2013/07/22/eeopolicy2013.pdf; U.S. Dep’t of Justice, Equal Employment Opportunity Policy, https://www.justice.gov/jmd/file/790081/download; Civil Rights Div., Equal Employment Opportunity, Anti-Harassment & Whistleblower Protection Policy, Experienced Attorney & Attorney Manager Hiring Policy, https://www.justice.gov/sites/default/files/crt/legacy/2014/05/13/attyhire.pdf.